R (on the application of M) (FC) (Appellant) v London Borough of Hammersmith and Fulham (Respondents)

Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Counsel

Appellants:

Jan Luba QC

Ian Wise

(Instructed by The Howard League for Penal Reform)

Respondents:

Clive Lewis QC

Joanne Clement

(Instructed by Legal Services Division London Borough of Hammersmith and Fulham)

Hearing date:

14 & 15 JANUARY 2008

ON

WEDNESDAY 27 FEBRUARY 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of M) (FC) (Appellant) v London Borough of Hammersmith and Fulham (Respondents)

[2008] UKHL 14

LORD HOFFMANN

My Lords,

1. I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I too would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

2. I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and for the reasons she gives, with which I am in full agreement, I too would dismiss this appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

3. I have had the privilege of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in full agreement with it, and I too would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

4. Any parent of teenagers aged 16 and 17 knows how difficult they can be. But they also know that, however much those teenagers are struggling to discover their own identities and lead independent lives, they also depend upon the love and the support of their parents. As the Green Paper, Care Matters: Transforming the Lives of Children and Young People in Care (2006, Cm 6932, para 7.2) put it:

For most young people the idea of being left unsupported at that age would be alien. They have a sense of security and know that their parents will always be there for them. Few young people ever really leave the care of their parents. They may leave home, and on average do so at the age of 24, but they know that their families are only ever a phone call away and stand ready to offer financial support and advice, or a place to stay if they need it.

This case is about the respective responsibilities of local authority childrens and housing services towards children aged 16 and 17 who are unable to live with their families. In the end, it comes down to a short point of construction: what is meant by a child who is looked after by a local authority', as defined in section 22(1) of the Children Act 1989? But the clear intention of the legislation is that these children need more than a roof over their heads and that local childrens services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities.

What happened in this case

5. M is the youngest of her mothers five children by different fathers. The family spent many years in unsettled and temporary accommodation. On her own account the mother (who had spent her own childhood in local authority care) had tremendous difficulty controlling her children. M was excluded from school at the age of 14 and never returned. Her mother has been ill for many years with a stomach complaint which was eventually diagnosed as an inoperable malignant tumour. M was expected to look after her mother but at the same time left to get on with her own thing without supervision'. Early in 2005 she became involved with the criminal justice system. Soon afterwards, the relationship with her mother broke down.

6. On the mothers account, M went with the mothers Macmillan nurse to seek help from the local childrens services department and was turned away; but there is no record of any such visit. However, there is a record of a visit by M to the local authoritys housing department on 4 February 2005, shortly before her 17th birthday. She bore a letter from her mother to whom it may concern'. This stated that M is no longer able to stay in my home as she has broken every rule laid down to her and asking help for M by placing her in her own home'. The first part of a First Approach: Needs Assessment and Referral Form was filled in but no more: the manager speculates that M was sent away to ask for proof that her mother was entitled to exclude her from the home and did not return.

7. M next approached the Housing Department on 5 April 2005, bearing another letter from her mother:

I go into hospital on 6th April 2005 for treatment on a tumour I have. I am not prepared for [M] to be one of the factors that halt my treatment because of her behaviour. I am not willing to try with her anymore. She has ongoing Court Cases and a lot of social problems. I myself have tried but I cannot help. So I hope you can be of some assistance with the housing needs for [M].

Once again, the housing department sent her home, this time with a letter to her mother stating that she should give her daughter at least 28 days notice to leave. The mother replied immediately, saying that she had already done so two months ago and that her home would be locked up when she went into hospital the following day. Back at the housing office, M explained that she was on bail for various offences, so (after contacting the Youth Offending Team) she was advised to inform the police that she had lost her bail address.

8. The following day, 6 April 2005, M was in court and needed a bail address as she could not go home. Her solicitor persuaded the housing department to provide her with temporary accommodation in a bed and breakfast hotel and to fax the court to that effect. M signed a licence agreement with the local authority that same day. The Needs Assessment form completed by the officer recorded that she was currently not on any income, was a young person at risk, an offender and an ex or current offender.

9. Despite that, there is no record of any referral to the local authoritys childrens services department. There was a referral to a mediation service, with a view to exploring the possibility of M going back to her mothers home. The mediator left two telephone messages for M and sent one letter but received no response. Accordingly the local authority cancelled her licence with effect from 25 April but reinstated it that same day when M agreed to see the mediator. She did so the following day, but when they contacted the mother, she made it clear that she was not prepared to engage in mediation or to have M at home any more. The local authority therefore continued to provide M with temporary accommodation at the hotel. She was interviewed about her housing application in May, but once again no inquiries were made of the childrens services department, or at that stage of the Youth Offending Team. In July she was moved to a hostel for 16 and 17 year olds, but in October she was evicted for breaking the hostel rules. She went to stay with her sister, who lived with her eight month old baby in one bed-roomed accommodation not suitable for three people.

10. The later history is not strictly relevant to the issues we have to decide but it seems clear that the lack of suitable supported accommodation played an important part in Ms encounters with the criminal justice system, not least because she required a settled address for electronic tagging. It is not easy to disentangle the threads of the story from the documents on the housing department file. When first accommodated in April 2005, M was on bail for an offence of robbery committed in January that year. In May she was given a 9 month referral order for that offence. Shortly before that, however, she committed an offence of witness intimidation and in October 2005 she was placed under a Community Punishment and Rehabilitation Order for that offence. The pre-sentence report commented that her succession of temporary bed & breakfast placements have meant that [M] has more recently had little sense of permanency, and has had to adapt to cope with independence beyond her skills. Initially she seemed to be doing well with that order. However, in November 2005, she also became subject to a 12 month Supervision Order with an Intensive Supervision and Surveillance Programme for offences committed in 2004. She was not up to keeping track of the demands of both orders and in December she was back in court for breach. By then her sister had evicted her and the local authority had given her further temporary accommodation. But once again she faced eviction from that accommodation for breaking the rules. The bench clearly did not want to send her into custody and on 21 December adjourned the case to see whether her accommodation problems could be resolved. She was summarily evicted the very next day having been assaulted by an unauthorised guest (said to be an ex boyfriend) and went to stay with her mother. Unfortunately she could not see a housing officer before her next appearance in court in January 2006, when she was sentenced to a four month detention and training order. While in custody she discovered that she was pregnant. She also reached the age of 18.

11. Proceedings for judicial review were launched while M was still in custody. The main aim was to obtain suitable accommodation for her before she was released; allied to this was a claim that M was owed duties by the childrens services department of the local authority, under the Children Act 1989 as amended by the Children (Leaving Care) Act 2000 (the 1989 Act); among these would be the appointment of a social worker and personal adviser. The local authority did not deny that she might be owed duties under the Housing Act 1996 (the 1996 Act) but did deny that any duties were owed under the 1989 Act.

12. Permission to move for judicial review was refused in the High Court but granted by Neuberger LJ when granting permission to appeal. Accordingly the case was tried by the Court of Appeal, which dismissed both the claim and the appeal: [2006] EWCA Civ 917; [2007] HLR 54. As Wall LJ began, the case raises a short but important point on the inter-relationship between the provisions of Part III of the Children Act 1989, headed Local Authority Support for Children and Families", and the homelessness provisions of Part VII of the Housing Act 1996, in particular ss 188 and 189, headed Interim duty to accommodate"'.

The Housing Act duties

13. Part VII of the 1996 Act contains statutory provisions relating to those who are homeless. Similar provisions were first enacted in the Housing (Homeless Persons) Act 1977 (later consolidated in the Housing Act 1985 part III). Duties are placed on the local housing authority; in non-metropolitan counties, this is the district council; in unitary authorities, such as the London Boroughs, it is the Borough Council: see Housing Act 1985, s 1. Where an applicant presents himself to the authority and the authority have reason to believe that he may be homeless or threatened with homelessness, they must make such inquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so what duty, if any, is owed to him under Part VII of the 1996 Act: 1996 Act, s 184(1). The fullest duty is owed once the authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally': see 1996 Act, section 193(1). An interim duty to provide accommodation is owed in the circumstances laid down in section 188(1):

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

14. Eligibility is defined in section 185 and is not in issue here. Priority need is dealt with in section 189. Section 189(1) defines a basic list of categories of people in priority need but section 189(2) allows the Secretary of State by order to add to (or subtract from) that list. article 3 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) (the Priority Need Order) defines one such additional category as follows:

(1) A person (other than a person to whom paragraph (2) below applies) aged sixteen or seventeen who is not a relevant child for the purposes of section 23A of the Children Act 1989.

(2) This paragraph applies to a person to whom a local authority owe a duty to provide accommodation under section 20 of that Act (provision of accommodation for children in need).

15. Thus, in the longer term, the Children Act duties supersede the Housing Act duties towards a 16 or 17 year old young person. A local housing authority could not be satisfied that a 16 or 17 year old was in priority need for the purposes of section 193(1) of the 1996 Act if they were satisfied that the local childrens authority owed a duty to accommodate that young person under the 1989 Act. But the interim duty in section 188 might arise where the housing authority had reason to believe that a 16 or 17 year old was in priority need and did not yet know whether or not the Children Act duties were owed.

The Children Act duties

16. The Children Act duties are owed by local social services authorities (now known for this purpose as childrens services authorities). In non-metropolitan counties, this is the county council. In unitary authorities, such as the London boroughs, this is the Borough Council. The principal duty to provide accommodation is set out in section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

This duty is now owed to children up to the age of 18 (its predecessors in the Children Act 1948 and Child Care Act 1980 applied only up to the age of 17) but section 20(3) provides an additional duty towards 16 and 17 year olds:

Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

There is also a power, in section 20(4), to provide accommodation for any child if they consider that to do so would safeguard or promote the childs welfare but that would not be a duty covered by article 3(2) of the Priority Need Order.

17. It is fundamental to the scheme of the 1989 Act that the local authority cannot provide accommodation under section 20 if any person, who has parental responsibility for the child and is willing and able to provide or arrange accommodation for her, objects: see 1989 Act, section 20(7). Accommodation under section 20 replaced what was previously known as voluntary care under the Children Act 1948 as consolidated in the Child Care Act 1980. The child is also given a voice in the decision, but not a decisive one. Before providing accommodation, the local authority must, so far as practicable and consistent with her welfare, ascertain the childs wishes regarding the provision of accommodation and give due consideration to them having regard to her age and understanding: 1989 Act, section 20(6). This must relate to the initial decision to accommodate, given that there is also an obligation to ascertain and take account of the wishes of both parent and child regarding any decision relating to a child whom they are already looking after or proposing to look after: 1989 Act, section 22(4), (5).

18. A child in need is defined in section 17(10):

For the purposes of this Part a child shall be taken to be in need if -

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled,...

Section 17 and Schedule 2 to the Act require the childrens authorities to provide a very wide range of services to safeguard and promote the welfare of children in need, and if possible to enable them to be brought up by their own families. They include, for example, providing accommodation for children and their families (section 17(6)) and taking reasonable steps to encourage children not to commit criminal offences (section 17(2) and Schedule 2, para 7). The broad scope of the services which may be provided indicates the broad scope of the concept of a child in need for whom they may be provided. But, unlike the specific duties in section 20, which are owed to the individual child, the wider duties in section 17 and Schedule 2 are target duties owed to the whole community rather than to individual children: see R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208.

19. Once a child is accommodated under section 20, she becomes a looked after child, as defined in section 22(1):

In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is -

(a) in their care; or

(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.

A child in care under paragraph (a) is one who is in the care of a local authority by virtue of a care order or the equivalent: see 1989 Act, section 105(1). The prime example of a child who is provided with accommodation under paragraph (b) is a child accommodated under section 20.

20. Once a child is looked after by a local authority, a great many other duties arise. These include, crucially, the duty to safeguard and promote her welfare and to maintain her in other respects apart from providing accommodation for her: 1989 Act, sections 22(3) and 23(1)(b). It would not be consistent with those duties, for example, to place a young person in a bed and breakfast hotel or hostel accommodation without providing her with enough money for food and other essentials. Although the local authority do not have parental responsibility for a child who is accommodated under section 20, they are nevertheless replacing to some extent the role played by a parent in the childs life, and are expected to look after the child in all the ways that a good parent would.

21. Particularly relevant in this case are the duties towards older children inserted by the Children (Leaving Care) Act 2000. The aim was to supply for those older children the same sort of continuing support and guidance which children can normally expect from their own families as they move from childhood to adulthood.

22. A child who is still being looked after by the local authority is eligible for these extra services if she is aged sixteen or seventeen and has been looked after for a total of 13 weeks or more since the age of 14: see 1989 Act, Schedule 2, para 19B(2), and Children (Leaving Care) (England) Regulations 2001, SI 2001/2874 reg 3(1) (the Leaving Care Regulations). The basic requirement is to carry out an assessment of the young persons future needs, to prepare a detailed pathway plan for her, covering matters such as accommodation, education, financial support and preparation for independent living, and to arrange for her to have a personal adviser: see 1989 Act, Schedule 2, paras 19B(4) and 19C, Leaving Care Regulations, regs 7, 8, 12 and Schedule.

23. If an eligible child ceases to be looked after by a local authority, but is still aged sixteen or seventeen, she becomes a relevant child': 1989 Act, section 23A(1). The local authority must take reasonable steps to keep in touch with her, appoint a personal adviser, assess her needs and prepare a pathway plan if she does not already have these. There is also a specific duty to support her, unless they are satisfied that her welfare does not require it, by maintaining her, providing her with or maintaining her in suitable accommodation, and assisting her with education, training and employment: 1989 Act, section 23B and Leaving Care Regulations. Once a relevant child reaches 18 (or a child ceases to be looked after at that age), the local authority still owe duties towards such a former relevant child', to advise and to provide various forms of assistance, especially with employment, education and training: 1989 Act, sections 23C, 24B.

24. Thus there is all the difference in the world between the services which an eligible, relevant or former relevant child can expect from her local childrens services authority, to make up for the lack of proper parental support and guidance within the family, and the sort of help which a young homeless person, even if in priority need, can expect from her local housing authority. This is not surprising as the skills and resources available to each department are so different. But it means that a huge amount depends upon whether or not she was a looked after child for the required total of 13 weeks, beginning some time after she reached 14 and ending some time after she reached 16. So it would also not be surprising if some local authorities took steps to avoid this (the Childrens Commissioner for England is currently sponsoring research into local authority practice towards the 14-18 age group: see childRIGHT, July/August 2007, p 8).

What ought to have happened in this case

25. The Homelessness Code of Guidance for Local Authorities (Office of the Deputy Prime Minister, 2002, para 8.37) which was current at the time was clear:

Responsibility for providing suitable accommodation for a relevant child or a child in need to whom a local authority owes a duty under section 20 of the Children Act 1989 rests with the social services authority. In all cases of uncertainty as to whether a 16 or 17 year old applicant may be a relevant child or a child in need, the housing authority should contact the relevant social services authority. It is recommended that a framework for joint assessment of 16 and 17 year olds is established by housing and social services authorities to facilitate the seamless discharge of duties and appropriate services to this client group.

The present Code (Department for Communities and Local Government, 2006, para 10.39) is even stronger. A framework for joint assessment will need to be established'. But, having contacted the childrens services authority, the housing authority should, where necessary, provide interim accommodation under section 188, pending clarification".

26. Of course, the Codes are not naïve. They recognise the risk of collusion and fabrication (2002, para 8.39; 2006, para 12.11). They also recognise that children in this age group are usually better off with their families, that temporary disagreements and estrangements are not unusual, and that reconciliation should be considered (2002, para 8.38; 2006, para 12.7); but also that in some cases relationships may have broken down irretrievably and in others it may not be safe or desirable for the young person to remain at home (2002, para 8.38; 2006, para 12.8), thus any mediation or reconciliation will need careful brokering and housing authorities may wish to seek the assistance of social services in all such cases (2006, para 12.9; in the earlier version this was positively recommended, 2002, para 8.38).